Read all about it - industry news, legislation, and case developments.

News

Painful battle over for mom

06 August 2011

By KATHRYN KIMBERLEY, Court Reporter

MOTHER Carmen Smith scratches her wrist, still a little tender; she has recently had her son’s name inked to her flesh. “I promised myself that when the court case was over, I would get a tattoo with Codi’s name. I kept my promise,” she beams.

Smith, 38, was recently given the good news that her four-year legal battle with 13 of East London’s top doctors is over. And in her case, “David ” has once again triumphed over “Goliath”. Her civil claim has finally been settled, with agreement over the amount of damages some of the doctors will pay.

Smith’s legal team this week resolved the matter in a confidential agreement against radiologist Dr Allison Horsell and gynaecologist Dr Brian Kilpurt. The action was withdrawn against the remaining 11 medical professionals.

Due to the confidentiality agreement, Smith cannot reveal the settlement amount. However, she originally sued for damages of R12 million. In 2007 Smith, represented by Johannesburg medical negligence attorney Mervyn Joseph, instituted legal action against radiologists, Doctors Horsell, Anthony Rushton, Wessel Strydom, Hugh Williams-Jones, Mark Tarboton and Terence Counihan – all associated with East Coast Radiology – and gynaecologists Drs Kilpurt, Louis Coetzee, David Bowen and Robyn Spring – all working in association – and general practitioner Dr Graham Arthur. Coetzee has since died.

Shortly before the trial was due to start in March last year, the parties reached an out-of-court settlement on liability, with quantum or the amount of damages to be settled later.

Smith’s son, Codi, was born with open spina bifida – a condition which has left him paralysed from the waist down. Despite a battery of tests prior to his birth, doctors failed to detect the condition. Describing herself as a bit neurotic, Smith said she had requested her consulting doctor to arrange for all the necessary tests, including an amnio, to investigate if the foetus carried any abnormalities.

“Call it a mother’s instinct, but maybe deep down I suspected something was wrong,” she said this week from her modest Abbotsford home. She further told doctors that being a single mom she was not financially or emotionally equipped to raise a child with a birth defect and would therefore consider terminating the pregnancy.

Gazing over at Codi blowing bubbles in the backyard, Smith said: “Now that I have him I would not swap him for anything in the world. He is a gift – he means everything to me.“ But it was my right to be given that option, or at least to be given a chance to prepare for the trying time that lay ahead of me.” Smith said it was also the way doctors at St Dominic’s Hospital had informed her of little Codi’s condition that “infuriated” her. Codi was born on August 21, 2007, by Caesarean section shortly after 2pm. At 5pm she was wheeled into the neonatal ICU.

“My parents had been informed about the complications but they were not allowed to see me in case they let something slip. “The sister then said to me ‘I presume you’ve been told what’s wrong with your baby’. I was shocked, I had no idea what she was talking about.”

Mom and baby spent the next 16 days in hospital, where Codi had to undergo various lifesaving interventions, including a left ventricular peritoneal shunt in the brain to drain excess fluid and alleviate pressure. “By this time my medical bills were astronomical. I knew the problem was not going to go away and I needed to act now – to make sure that Codi’s needs would be seen to.”

Smith said Joseph had come highly- recommended. Already dealing with an anticipated bitter court battle and an ailing baby, Smith said it was when her story hit the papers that her emotions were truly put to the test. “The hardest part was how people misinterpreted what I was trying to do. Some thought I was a terrible mother for saying that I would have had an abortion.”

While some criticised Smith’s actions, she said her family and friends remained supportive throughout. When the case was settled this week, Smith said she felt like she had “lost an arm”. “The case became a part of my life. Then all of a sudden, within moments, it was settled. “I told Mervyn that he must continue to send me e-mails and phone me every now and then. That he must wean me off slowly,” she laughed.

Yesterday, Smith flew to Johannesburg to appoint a trustee to manage Codi’s award. Joseph said the money would cover Codi’s medical expenses for the rest of his life. “The money will give this little boy access to the very best in medical treatment and devices.”

Codi’s remaining life-expectancy has been worked out by specialist doctors, and learning the age Codi is expected to die will be yet another difficult step for the self-employed mom. “I am not going to take it to heart. Whatever that age is, I will ensure my little boy has the best life possible and allow him to be as independent as possible,” Smith added.

Joseph said: “We are grateful to the insurers of the defendants for the amicable resolution of the matter which obviated more stress and costs for the Smith family.”Smith said Codi’s friends had been “amazing”. “They are so accepting and kind to him.” Not hard to believe when Codi insists on being the centre of attention. “He pops wheelies on his wheelchair, ” Smith laughs. “But Codi has also had to understand that he cannot do everything his friends do. When his friends are on holiday, he isn’t. He must still go to physio and hydrotherapy four times a week.”

Asked if she ever considered having another child, Smith became sad. “I would love another child but I am too scared.” But considering the way Codi has “changed her life” and “opened her eyes to what is truly important in life”, Smith may just give it a second thought. While Codi’s name is tattooed on Smith’s wrist for the foreseeable future, she said his name would be tattooed on her heart for the rest of her life.

“Codi even wet a towel and rubbed my wrist just to make sure the tattoo is permanent. That’s my boy.” kathrynp@dispatch.co.za